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District Court of Appeal, First District, Division 2, California.


Cr. 2356.

Decided: October 23, 1945

Elizabeth Cassidy, of San Francisco, for appellant. Robert W. Kenny, Atty. Gen., and David K. Lener, Deputy Atty. Gen., for respondent.

The appellant has filed a petition for rehearing herein through substituted counsel in which complaint is made that he was not given proper consideration of his appeal. As we stated in the opinion on file herein, full opportunity was given appellant to file a brief in support of the appeal but his failure to do so was inexcusable and such failure is not excused by anything appearing in the petition for rehearing.

In addition to what was said in the opinion it should be added that on September 17, 1945, written notice was given appellant that the cause would be called for hearing and argument on October 8, 1945, but notwithstanding said notice, and a subsequent notice by telephone, the appellant failed to appear on the date set and failed to request a continuance of the hearing. Within eight days thereafter he filed his petition for a rehearing consisting of fifty nine pages which is in the nature of a brief on the evidence. The failure to prosecute the appeal is chargeable wholly to the dilatory tactics of appellant's counsel.

The petition is denied.

NOURSE, Presiding Justice.

Hearing denied; SCHAUER, J., dissenting.

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